Daniel Remsburg v. The State of Texas--Appeal from 6th District Court of Lamar County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00154-CR
______________________________
DANIEL REMSBURG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court
Lamar County, Texas
Trial Court No. 21207
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

A jury found Daniel Remsburg guilty of burglary of a building. See Tex. Penal Code Ann. 30.02(a) (Vernon 2003). After hearing the evidence regarding punishment, the jury assessed Remsburg's punishment at two years' confinement in a state-jail facility and no fine. Remsburg now appeals, contending he received ineffective assistance at trial because his trial counsel did not ask for a lesser-included offense instruction on either attempted burglary of a building or criminal trespass. Remsburg contends the evidence at trial would have shown he was guilty of only either of these lesser offenses, and thus he would have faced a lesser sentence had his trial counsel not failed to request these lesser-offense instructions.

The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail, an appellant must prove by a preponderance of the evidence (1) that counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. 668; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). Under this standard, a claimant must essentially demonstrate that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.

Our review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Id. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). This Court will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness on direct appeal. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Harner v. State, 997 S.W.2d 695, 704 (Tex. App.--Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

When ineffective assistance is raised on direct appeal, appellate counsel and the court must proceed on a trial record not developed for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose. Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003); cf. Massaro v. United States, 538 U.S. 500, 504-05 (2003) ("appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose"). However, there are cases, though they are indeed rare, where "trial counsel's ineffectiveness is so apparent from the record . . . ." Massaro, 538 U.S. at 508; see also Freeman, 125 S.W.3d at 507.

In this case, Remsburg filed his notice of appeal two weeks before he filed a motion for new trial, and the trial court did not conduct a hearing on the latter-filed motion for new trial. As such, Remsburg's trial counsel was not given an opportunity to explain why he might have chosen to not pursue the lesser-included offense instructions. (1) It is possible Remsburg's trial counsel made a conscious decision not to pursue these instructions in hopes of garnering an acquittal on the indicted burglary charge. Such a strategy would have certainly been reasonable given the facts of the case.

Accordingly, because we can imagine a reasonable and plausible trial strategy to explain the complained-of conduct, the record before us will not support a claim of ineffective assistance of counsel on direct appeal.

We overrule Remsburg's sole point of error and affirm the trial court's judgment.

 

Jack Carter

Justice

 

Date Submitted: March 5, 2007

Date Decided: March 30, 2007

 

Do Not Publish

1. If Remsburg had requested and received such an instruction, and if the jury had found him guilty of the attempted offense, rather than the offense alleged in the indictment, he would have faced a punishment assessed within the range provided for class A misdemeanor offenses. See Tex. Penal Code Ann. 15.01(a), (d) (Vernon 2003). Alternatively, if the jury had found Remsburg guilty of only criminal trespass, he would have faced a punishment assessed within the range provided for class B misdemeanors. See Tex. Penal Code Ann. 30.05 (Vernon Supp. 2006).